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of the Supreme Court, 1986 (Amendment)
Under the authority of section 55 of the Judicature Act, the Rules Committee of
the Trial Division, on
Barry R. Sparkes, Q.C.
1. Rule 44A Added
1. The Rules of the Supreme Court, 1986 are amended by adding immediately after Rule 44 the following:
Advance payment of damages
44A.01. Before damages are assessed, a judge may order the defendant to make an advance payment to the plaintiff on account of special damages if the court is satisfied that
(a) the defendant against whom the order is sought has admitted liability for the plaintiff’s damages, or
(b) the plaintiff has obtained judgment against the defendant with damages to be assessed.
44A.02. In any application for an advance payment of special damages, the plaintiff must specify, supported by affidavit evidence, the amount and nature of the special damages for which payment is sought.
Determination of amount
44A.03. In determining the amount of an advance payment, the judge may take into account any circumstances that the judge considers relevant, including
(a) the amount of special damages already incurred or likely to be incurred before damages are assessed,
(b) any counterclaim by the defendant,
(c) the extent, if any, to which the plaintiff may be found to be contributorily negligent,
(d) any failure by the plaintiff to mitigate the amount of special damages, and
(e) the needs and resources of the plaintiff and the means of the defendant, including the availability to the defendant of insurance to indemnify the defendant in respect of the plaintiff’s claim.
44A.04. The judge may order that payment under rule 44A.01 may be made by lump sum, by instalment, or by both.
44A.05. A plaintiff may make more than one application pursuant to this Rule.
2. This rule shall come into force on
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